EN BANC
[G.R. No. 217179. March 8, 2016.]
MARGARITA R. COJUANGCO, PH.D., petitioner, vs. LAW DEPARTMENT, COMMISSION ON ELECTIONS, represented by ACTING DIRECTOR IV MARIA NORINA S. TANGARO-CASINGAL; ACTING CHAIRPERSON CHRISTIAN ROBERT S. LIM, COMMISSION ON ELECTIONS, public respondents.
SIXTO S. BRILLANTES, JR. and WORTHY ACOSTA, private respondents.
[G.R. No. 217203. March 8, 2016.]
GLENN ANG CHONG, petitioner, vs. LAW DEPARTMENT, COMMISSION ON ELECTIONS, represented by ACTING DIRECTOR IV MARIA NORINA S. TANGARO-CASINGAL; ACTING CHAIRPERSON CHRISTIAN ROBERT S. LIM, COMMISSION ON ELECTIONS, public respondents.
SIXTO S. BRILLANTES, JR. and WORTHY ACOSTA, private respondents.
[G.R. No. 217464. March 8, 2016.]
ELISEO A. ROJO, II, petitioner, vs. MARIA NORINA S. TANGARO-CASINGAL, ACTING DIRECTOR IV, LAW DEPARTMENT, COMMISSION ON ELECTIONS, and CHRISTIAN ROBERT S. LIM, ACTING CHAIRPERSON, COMMISSION ON ELECTIONS, public respondents.
SIXTO S. BRILLANTES, JR. and WORTHY ACOSTA a.k.a. "WORTHY ACOSTA y NAVARRO," private respondents.
[G.R. No. 217621. March 8, 2016.]
FRANCISCO S. TATAD and NORBERTO B. GONZALES, petitioners, vs. COMMISSION ON ELECTIONS, represented by ACTING CHAIRPERSON CHRISTIAN ROBERT S. LIM; LAW DEPARTMENT-COMELEC, represented by ACTING DIRECTOR IV MARIA NORINA S. TANGARO-CASINGAL, public respondents.
SIXTO S. BRILLANTES, JR. and WORTHY ACOSTA a.k.a. WORTHY ACOSTA y NAVARRO, private respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court en banc issued a Resolution datedMARCH 8, 2016, which reads as follows:
G.R. No. 217179 — MARGARITA R. COJUANGCO, PH.D., Petitioner v. LAW DEPARTMENT, COMMISSION ON ELECTIONS, represented by ACTING DIRECTOR IV MARIA NORINA S. TANGARO-CASINGAL; ACTING CHAIRPERSON CHRISTIAN ROBERT S. LIM, COMMISSION ON ELECTIONS, Public Respondents; SIXTO S. BRILLANTES, JR. and WORTHY ACOSTA, Private Respondents; G.R. No. 217203 — GLENN ANG CHONG, Petitioner v. LAW DEPARTMENT, COMMISSION ON ELECTIONS, represented by ACTING DIRECTOR IV MARIA NORINA S. TANGARO-CASINGAL; ACTING CHAIRPERSON CHRISTIAN ROBERT S. LIM, COMMISSION ON ELECTIONS, Public Respondents; SIXTO S. BRILLANTES, JR. and WORTHY ACOSTA, Private Respondents; G.R. No. 217464 — ELISEO A. ROJO, II, Petitioner v. MARIA NORINA S. TANGARO-CASINGAL, ACTING DIRECTOR IV, LAW DEPARTMENT, COMMISSION ON ELECTIONS, and CHRISTIAN ROBERT S. LIM, ACTING CHAIRPERSON, COMMISSION ON ELECTIONS, Public Respondents; SIXTO S. BRILLANTES, JR. and WORTHY ACOSTA a.k.a. "WORTHY ACOSTA y NAVARRO," Private Respondents; G.R. No. 217621 — FRANCISCO S. TATAD and NORBERTO B. GONZALES, Petitioners v. COMMISSION ON ELECTIONS, represented by ACTING CHAIRPERSON CHRISTIAN ROBERT S. LIM; LAW DEPARTMENT-COMELEC, represented by ACTING DIRECTOR IV MARIA NORINA S. TANGARO-CASINGAL, Public Respondents; SIXTO S. BRILLANTES, JR. and WORTHY ACOSTA a.k.a. WORTHY ACOSTA y NAVARRO, Private Respondents.
For our disposition are consolidated petitions for certiorari and prohibition with prayer for preliminary injunction or temporary restraining order (TRO) alleging grave abuse of discretion on the part of the Commission on Elections (COMELEC) Law Department for filing complaints for 1) Violation of Section 261 (z) (12) of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, and docketed as E.O. Case No. 15-359; and 2) Violation of Section 35 (a) of Republic Act No. 8436, as amended by Section 28 of Republic Act No. 9369 (Utilizing Without Authorization, Tampering with and Stealing Official Ballots), and docketed as E.O. Case No. 15-363, against herein petitioners.
These four cases share the same factual background, as follows:
In an Affidavit dated March 6, 2015, submitted to the COMELEC, Worthy Acosta (Acosta), a former executive assistant of Margarita Cojuangco (Cojuangco), narrated the alleged utilization without authorization, tampering with, and stealing of official ballots used in the May 13, 2013 Automated Synchronized National, Local and ARMM Regional Elections, particularly that of Clustered Precinct No. 5, Barangay Asin Road, Baguio City, by Cojuangco and several other persons.
A second Affidavit also dated March 6, 2015 was executed by retired COMELEC Chairperson Sixto Brillantes, Jr. (Brillantes), who served as COMELEC Chairperson from January 17, 2011 to February 2, 2015. Brillantes's Affidavit included the Report on the Inventory of Ballot Boxes conducted on February 2, 2015 by Atty. John Paul A. Martin, the Election Officer of Baguio City. In his affidavit, Brillantes narrated that he was "contacted through text by a person introducing himself as Worthy Acosta, saying he knew how [Glenn] Chong obtained the evidence on electoral fraud" and that they met in his office on January 7, 2015 where he interviewed Acosta regarding his information on Glenn Ang Chong (Chong).
Based on the aforementioned Affidavits, the COMELEC Law Department, through Atty. Maria Norina S. Tangaro-Casingal, Acting Director IV, initiated two Complaints both dated March 17, 2015 for a) violation of Section 261 (z) (12) of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, and docketed as E.O. Case No. 15-359, against Acosta, Cojuangco, Chong, Bernardo Vergara (Vergara), Ferdi Balanag (Balanag), Eliseo Rojo (Rojo), Alicia Onoza (Onoza), John and Jane Does of the Treasurer's Office of Baguio City; and (b) violation of Section 35 (a) of Republic Act No. 8436 as amended by Section 28 of Republic Act No. 9369 (Utilizing Without Authorization, Tampering with and Stealing Official Ballots), and docketed as E.O. Case No. 15-363, against Acosta, Cojuangco, Chong, Vergara, Balanag, Rojo, Onoza, John and Jane Does of the Treasurer's Office of Baguio City, former COMELEC Commissioner Augusto Lagman (Lagman), Melchor Magdamo (Magdamo), Lito Averia (Averia), former Senator Francisco Tatad (Tatad), former National Defense Secretary Norberto Gonzales (Gonzales), Dr. Kamil Unda (Unda), Archbishop Ramon Arguelles (Arguelles), and one John Doe appearing in the video presentation entitled Editor's Cut v4.
Pertinent parts of the complaints, largely based on the allegations in Acosta's Affidavit, read:
a. Sometime after the May 13, 2013 National and Local Elections, Acosta, his then employer Cojuangco, Chong, and other persons, most of whom were defeated candidates in the 2013 elections, frequently met at the residence of Cojuangco to discuss alleged election fraud and massive cheating during the 2013 and 2010 automated elections.
xxx xxx xxx
b. In one of these meetings, Chong pointed out, and everyone present agreed, that the best way to prove election fraud was to take a look at the actual Official Ballots used in the 2013 elections. Chong suggested obtaining the same from Maripipi Island in Biliran wherein frequent power outages render it easy to break into the island's Treasurer's Office which has official custody of the Official Ballots.
c. The Maripipi Island plan did not materialize; instead, the group considered Baguio City, as suggested by Cojuangco, where the latter had strong connections, particularly referring to Vergara, a former Representative of the City's lone district.
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h. In Baguio, Acosta and Rojo met with Vergara who was accompanied by Balanag, who[m] the former introduced as his Press Relations Officer. Vergara laid down the details of the "retrieval plan."
i. After the meeting, Acosta, Rojo and Balanag proceeded to the Warehouse where the ballots were stored to conduct an ocular inspection. aScITE
j. The following day, pursuant to the plan, Acosta met with Balanag at the parking lot of Baguio City Hall. Balanag went inside the City Hall and after some time, came out along with some people wearing t-shirts which bore the name of the Treasurer's Office, evidently personnel of said office, and the named respondents Jane Does and/or John Does herein. Acosta, Balanag, Rojo and the Treasurer's Office personnel drove aboard a convoy of several vehicles towards the Warehouse.
k. Upon arrival, the personnel of the Treasurer's Office unlocked the doors of the Warehouse. Acosta and Balanag entered the Warehouse and proceeded to its second floor.
l. Thereat, Acosta picked a Ballot Box [at] random. He cut its plastic seal, pulled off the packaging tape wrapped around it and opened the same.
m. With the assistance of Balanag, Acosta took about half of the Official Ballots inside and placed them in his backpack, which can no longer accommodate the rest of the Official Ballots.
n. While exiting from the Warehouse, Acosta noticed that the people from the Treasurer's Office were still there waiting for them. Once outside the warehouse, Acosta and Balanag parted ways.
o. Acosta and Rojo took the Official Ballots to Villa Cordillera where they were billeted under the name of Cojuangco.
p. Therein, Acosta learned that the Official Ballots belong to Precinct 5, Barangay Asin [R]oad.
q. Using his mobile phone, Acosta contacted Chong to report, who then instructed him to tamper the Official Ballots, particularly the votes for Representative of Baguio City, so that Vergara would appear to have been defrauded. They wanted Vergara to believe in election fraud so that the latter would join their cause.
r. Since Acosta was only able to obtain about half of the Official Ballots pertaining to a precinct/Ballot Box, he knew the votes in the Statement of Votes (SOV) and the Election Returns (ER) concerned would be more than the total votes in the Official Ballots he obtained. Hence, he "decided to just make it appear that all of the candidates' votes in the actual Official Ballots were increased to the figures reflected in the Election Returns; only that, Aliping's votes were increased significantly more than those of Vergara's and the other losing candidates."
s. Using a black Pilot sign pen, Acosta "proceeded to do the shading of the Official Ballots in the following manner:
1.) on Official Ballots where only Aliping's oval was shaded: I shaded another candidate's oval in the same position in order to null the vote by making an overvote;
2.) on Official Ballots where no votes were cast in the position concerned: I shaded Vergara's oval."
t. According to him, "the result was a reduction of votes for Aliping and an addition of votes for Vergara. The discrepancy between the total number of votes on the Official Ballots and on the Election Return increased for Aliping and decreased for Vergara. We represented this discrepancy as the fraudulent increase in the candidates' actual votes — Aliping had the biggest increase."
u. Also upon Chong's instructions, Acosta likewise tampered with the senatorial votes for Cojuangco, whose votes were "very shamefully low."
v. Acosta proceeded to Vergara's residence to report on the successful "retrieval operation" and present the Official Ballots.
w. Upon returning to Metro Manila, Acosta reported to Cojuangco about the "retrieval operation" but left out the fact of tampering and that only half of the Official [B]allots inside a Ballot Box were obtained.
x. Acosta left the custody of the Official Ballots with Cojuangco and Chong.
y. Eventually, the group of Acosta, Cojuangco, [and] Chong started a meeting with other notorious critics of the COMELEC such as Corazon Akol, Evita Jimenez, Averia, Lagman and Magdamo. They continued to gather evidence on alleged election fraud. They made propaganda materials using the Official Ballots illicitly obtained and tampered in Baguio City, and presented the same to the public as evidence of election fraud. They likewise started conceiving plans of going around the country to campaign against alleged election fraud using the "evidence" that they have gathered. 1
The complaints were referred to the Investigation and Prosecution Division of the COMELEC Law Department for preliminary investigation. Atty. Charlie Lim Yap, Acting Chief of said Division, issued several subpoenas against herein petitioners in connection with E.O. Case Nos. 15-359 and 15-363, directing them to appear at the Law Department and submit their respective counter-affidavits and other supporting documents, as well as affidavits of their witnesses.
Hence, Cojuangco filed G.R. No. 217179. Chong followed suit and filed G.R. No. 217203. Noting that he was one of the respondents, Rojo also filed G.R. No. 217464. Thereafter, Tatad and Gonzales also filed G.R. No. 217621 after subpoenas were also issued to them.
All the petitions were filed by the same counsel, Atty. Manuelito R. Luna, and were based on essentially the same grounds, to wit:
A. Procedural
I. Whether or not the petition is the proper remedial vehicle to assail the actions of the Law Department and/or the Commission on Elections;
II. Whether or not the Supreme Court has the power and the duty to entertain the petition;
III. Whether or not there exists a justiciable case or controversy;
IV. Whether or not the dispute is ripe for adjudication;
V. Whether or not under the circumstances, direct recourse to the Supreme Court is sanctioned; [and]
VI. Whether or not petitioner[s] possess "locus standi." HEITAD
B. Substantive
VII. Whether or not the Law Department and/or the Commission on Elections committed grave abuse of discretion amounting to lack or excess of jurisdiction for taking unwarranted action on the Sixto S. Brillantes, Jr. and Worthy Acosta Affidavits;
VIII. Whether or not the Law Department and/or the Commission on Elections committed grave abuse of discretion for accusing petitioner[s] of election offenses;
IX. Whether or not the Law Department and/or the Commission on Elections committed grave abuse [of discretion amounting to lack or] excess of jurisdiction for not dismissing the formal complaints; [and]
X. Whether or not a Writ of Preliminary Injunction or a Temporary Restraining Order should issue. 2
In the Resolution dated April 7, 2015, this Court consolidated G.R. Nos. 217179 and 217203. These cases were subsequently consolidated with G.R. Nos. 217464 and 217621. Thereafter, public respondents COMELEC, represented by Acting Chairperson Christian Robert S. Lim, Law Department-COMELEC, represented by Acting Director IV Maria Norina S. Tangaro-Casingal, and private respondents Brillantes and Acosta were required to comment on the petitions for certiorari and prohibition with prayer for preliminary injunction or temporary restraining order (TRO).
In his Comment/Opposition dated May 4, 2015, Brillantes alleged that the petitions are fatally defective for being premature since the "COMELEC Law Department has just started with its preliminary investigation and the COMELEC En Banc has not yet performed any judicial or quasi-judicial act that can be the subject of an action for certiorari." According to Brillantes, petitioners had other remedies available to them, "as they can file the appropriate Motion to Dismiss or to Quash, or they can even file their respective Counter-Affidavits." Brillantes maintained that the fact that petitioners were "required to file their respective counter-affidavits is proof enough that due process is being accorded to them and that their fundamental freedoms were not in any way curtailed."
In a Comment dated December 15, 2015, public respondents contend that the petitioners' resort to certiorari and prohibition is not proper and in violation of the doctrine of hierarchy of courts as petitioners have other plain, speedy, adequate remedies in the ordinary course of law. According to the public respondents, they filed said complaints motu proprio against herein petitioners after they verified the allegations in the affidavits of Acosta and Brillantes and were convinced that petitioners committed an election offense. Public respondents maintain that "the finding of probable cause in the prosecution of election offenses rests in the COMELEC's sound discretion" in the exercise of its "exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law."
Subsequently, Brillantes filed a Manifestation with Motion to Dismiss dated July 20, 2015 wherein he narrated that this Court, in a Resolution dated April 21, 2015, had already dismissed a similar petition docketed as G.R. No. 217386, which was filed by Chong assailing the same E.O. Case Nos. 15-359 and 15-363, and enjoining the COMELEC and its Law Department from taking cognizance of his and Acosta's affidavits. According to Brillantes, all five cases "share the same parties, are directed against the same complaints filed by the COMELEC Law Department, allege the same recital of facts, the same arguments and the same reliefs sought" such that the dismissal of one (G.R. No. 217386) should operate as a precedent for the dismissal of the other cases.
We dismiss the petitions.
A special civil action for certiorari, under Rule 65, is an independent action based on the specific grounds therein provided and will lie only if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. A petition for certiorari will prosper only if grave abuse of discretion is alleged and proved to exist. "Grave abuse of discretion," under Rule 65, has a specific meaning. It is the arbitrary or despotic exercise of power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of law. For an act to be struck down as having been done with grave abuse of discretion, the abuse of discretion must be patent and gross. 3
Paragraph 6, Section 2, Article IX-C of the Constitution grants to the COMELEC the power to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. This constitutional grant of prosecutorial power to the COMELEC is likewise stated in Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit: ATICcS
SEC. 265. Prosecution. — The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.
Clearly, the finding of probable cause in the prosecution of election offenses rests in the COMELEC's sound discretion. The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices. Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. This principle emanates from the COMELEC's exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. 4
In Albaña v. Belo, 5 we held:
A preliminary investigation, as the term connotes, is essentially the means to discover who may be charged with a crime, its function being merely to determine probable cause. All that is required in the preliminary investigation is the determination of probable cause to justify the holding of petitioners for trial. By definition, probable cause is —
. . . a reasonable ground of presumption that a matter is, or may be, well founded . . . such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest or strong suspicion that a thing is so. The term does not mean 'actual or positive cause' nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.
Here, the COMELEC is still in the preliminary investigation stage of the election offenses allegedly committed by petitioners. The COMELEC has yet to determine the existence of probable cause based on the affidavits of Brillantes and Acosta, as well as petitioners' respective counter-affidavits, affidavits of their witnesses, and other supporting documents. The COMELEC has not yet issued a resolution finding probable cause for the election offenses charged against petitioners, nor recommended the filing of the necessary criminal information against petitioners. Indeed, we have held that, where a preliminary investigation was still in the incipient stage and the only action of the investigating panel was to issue subpoenas, a resort to the courts through a petition for certiorari and prohibition is premature, as the investigating panel has not made any finding that can be subject to judicial review. 6
In sum, the COMELEC, in issuing the subpoena against herein petitioners validly exercised its power to investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.
WHEREFORE, finding no grave abuse of discretion on the part of the COMELEC and its Law Department, the consolidated petitions for certiorari and prohibition are hereby DISMISSED." Brion, J., on leave. (adv47)
Very truly yours,
(SGD.) FELIPA B. ANAMAClerk of Court
Footnotes
1. Rollo (G.R. No. 217179), pp. 65-68.
2. Id. at 14-16.
3. Beluso v. Commission on Elections, 635 Phil. 436, 442-443 (2014).
4. Baytan v. Commission on Elections, 444 Phil. 812, 820 (2003).
5. 617 Phil. 340, 353 (2009); citing Allado v. Diokno, G.R. No. 113630, May 5, 1994, 232 SCRA 192, 200.
6. Santos-Concio v. Department of Justice, 567 Phil. 70, 91 (2008).